TODD SEAVEY
author of Libertarianism for Beginners and writer of/speaker about many other things

Wednesday, July 14, 2010

From the Foundations to the Bastille

Happy Bastille Day. While I don’t hold the French Revolution in much higher esteem than I do the Bolshevik Revolution, both (unsurprisingly) ending in mass murder, I do think this is an apt day for asking radical/revolutionary questions. One that keeps cropping up in conversations on this blog and elsewhere is what the foundation of libertarian thinking is.

Clearly, for some people — perhaps for a growing portion of libertarians as new, younger people enter the movement — libertarianism is a messy enough bundle of things, from personal autonomy to constitutionalism to national sovereignty, that it’s almost surprising libertarians’ answers to moral and policy questions are as consistent as they are.

And, to be sure, diverse rhetorical modes have long been there in the movement — sometimes individualistic, sometimes conservative, sometimes revolutionary, sometimes bean-counting, sometimes coo-coo-liberationist — but I think it’s always been clear to the deepest and most careful thinkers in the movement, from Robert Nozick to Milton Friedman to Murray Rothbard, that property rights has to be the real basis, not because, say, we arbitrarily prefer shopping to meditation or charity but because all the other candidates for a foundation are so subjective that they simply don’t lead in a predictable way to the sorts of answers to moral and policy questions that the movement keeps generating.

I can tell you that burglary, taxation, and contract fraud all involve someone taking someone else’s property without permission, and it’s not that great a logical leap (however debatable a move one might think it in utilitarian terms) from there to saying all government regulation is an intrusion, etc. By contrast, all the fuzzier candidates for underlying principles, such as “autonomy” or “individualism,” seem to lead most people to moral conclusions as diverse and strange as the dreams of poets. Does property enhance autonomy? OK, I guess. Does an NEA grant also enhance autonomy? Maybe sometimes, I don’t know.

I can tell you with confidence that the money for it was taken from taxpayers threatened with jail time, though. The property violation is much easier to spot than the vague imbalance in various metaphysical asserted-virtues. You can’t run coherent law courts designed to ferret out threats to “individualism” (cops? billboards? too many people wearing the same shirt? twins?).

And so, even as I’ve listened to many a speech extolling “liberty” and “pluralism” and so forth, I suppose I’ve always been translating such vague rhetoric in my mind into the only thing that can really provide simultaneous moral, legal, empirical, and linguistic clarity in these matters — with the added bonuses of ease of transmissibility to new learners and the potential to be employed in any culture, or for that matter any planet, unlike more culturally- or psychologically- or historically-rooted concepts.

Property is as universalizable as game theory, which cannot be said for, say, an ethnically-rooted religion or even a revered but historically-rooted document. These other things are tolerable as imperfect but sometimes necessary real-world instantiations of the abstraction lying in back and well above them, which is property, with its correlation to mutually-beneficial exchange, and thus to preference-fulfillment, and thus to increased utility, and thus to the moral and efficient organization of society, more direct than the crude approximations to be found in the cases of, say, national sovereignty or some quirky vision of personal flourishing, be it Objectivist or Viking.

Of course, some would say that the danger in an abstract, universalizable code (like the danger some see implicit in the Enlightenment) is that it fosters the imperialistic desire to go out and actually universalize it, no matter what the natives think (not that I’m so sure that’s an awful outcome). To wrestle with that matter, I’ll do three things, and with at least one of them, you can help immensely:

•I’ll review the book After the Victorians, about the collapse of the British Empire, on this site next month.

•I’ll declare August a “Month of Imperialism” on this blog (that sounds like fun) and blog about some of these issues.

•I’ll host a Debate at Lolita Bar on August 12th (8pm) on the question “Can There Be Benign Imperialism?” We have our imperialist, so if you’re an anti-imperialist and you’re free and in NYC that night, perhaps you should contact me at the e-mail address on my About/CONTACT page (linked in the right margin of my front page) and volunteer. You don’t want the British to walk all over you, do you? If you’re like (murderer and) antiglobalization philosopher Antonio Negri, you don’t even want them selling you things. Please make your case.

5 comments:

Nick
said...

My father always reminded me that they gleefully dragged the nuns to the guillotine. I think chopping off heads is like popping those sheets of air-bubble stuffing that come with your new DVD player — once ya start, ya can’t stop.

Another unfortunate consequence of the bloodbath: no Trappist beers from France as most of the monks moved to Beglium and Holland.

“I can tell you that burglary, taxation, and contract fraud all involve someone taking someone else’s property without permission….”

Actually, no: A burglary is an illegal entry into a building (which is rather broadly defined– e.g., an automobile) with the intent to commit a further crime therein. That further crime need not be theft, nor any other crime involving the owner’s property– personal, real or intellectual. Contract fraud need not involve a taking of a party’s property, since property need not be the consideration that either party pledges to the other under the contract at issue. Permission to be taxed per se is tacit in one’s choosing to remain in a society that has set up a legal mechanism for determining and then collecting taxation from its members. As George Carlin used to say: “If you don’t like the weather, move!”

Talking about property, of any sort, without government is meaningless. Absent a government to decree and adjudicate property rights, one merely has individuals claiming, “This is mine!”– to which any other individual may assert, “No, it is mine!” In such a circumstance, might alone makes right, and possession adds its missing tenth to become the whole of the law, as each individual becomes a law unto him- or herself. No right is meaningful absent one’s ability to have one’s claims to any such right adjudicated, and no such adjudication is possible without some form of government, whether that be a formal constitutional government within a nation-state, or merely the de facto power of a chief within a small band of wandering primitives.

“No right is meaningful absent one’s ability to have one’s claims to any such right adjudicated . . .”

True enough.

“. . .and no such adjudication is possible without some form of government . . .”

Here I must protest. A government is an agency with a monopoly on the use of legitimized coercion. It is very much possible to meaningfully adjudicate claims without such an agency. Parties to a dispute could submit the dispute to a mutually agreed-upon arbiter who would rule in accordance with mutually agreed-upon principles. (Much as thousands of disputes are submitted to private arbitrators every day in the United States.) There would be competition among these arbiters, making them completely unlike government entities.

A fuller description of how this would work is available in The Machinery of Freedom, by David D. Friedman. (Available for free online.)

Thank you, Mr. Siegel! I am well aware, and appreciative, of the benefits of private arbitration. As a former attorney, I am generally about as down on my own erstwhile ilk as “Jack the Ripper” famously was on, shall we say, entrepreneurial lone practitioners in the commercial sex trade. As often as not, as I myself am wont to note, the law is indeed an ass!

The fact remains, however, that private arbitrators only have authority when the contesting parties contract with them to arbitrate, and only have such authority as those competing parties grant. Such an arbitrator has no authority to declare rights in the abstract, but merely to decide on the proper interpretation of a given contract’s quids and quos, in light of the facts adduced through the arbitration process; and, if necessary and appropriate, to assess the damages due for any breaches of the contract at issue.

In a world without government, why would a business entity that has knowingly cheated some other such entity ever agree to such an arbitration? What about criminals who rip off businesses for a living, whether in an organized fashion or as entrepreneurial lone practitioners of yet another sort? Private arbitration as a means of bypassing the court system is quite a different thing from actually doing away with that system– and the rest of government– altogether. It is the government, after all, not the arbitrator, that has the sole authority to compel compliance with an arbitrator’s ruling!

As someone trained in Business (M.B.A.) and History (B.A.), as well as Law (J.D.) and Psychology (M.S.), I am at a total loss to understand how capitalism even can exist in a lawless vacuum!?! No government means no common law. It means no statutory laws. It means no criminal code. It means no public court system. It means no penal system. It means no publicly backed monetary system. It means that private contracts have no public backing through the application of centuries of accumulated Anglo-American contract law. It means no limited liability through incorporation. It means no intellectual property rights– no patents, no trademarks, no copyrights (like, say, the one claimed at that bottom of this very Web page). “Etc., etc., etc….”

To me, anarcho-capitalism is as inane and oxymoronic as my (A.B.D.) theologian-nephew’s belief that Roman Catholicism and Marxism are amenable to one another! Capitalism did not arise and develop despite the evolving Western Tradition of law and self-government; it arose and developed as a direct consequence of that tradition, and is the very reason that the West has maintained the most advanced civilization and economic system in the world for several hundred years now.

As James Madison noted to the People of the State of New York, in “The Federalist No. 51″ on February 6, 1788, as the Constitution was still in the process of being ratified by the states, government is necessary because men (and, I would dare add, women) are not angels. Pretending that we are like angels, save for having competing economic interests that may need adjudication through private arbitrators, will not make it so. I simply find it perverse that anyone who places property rights as the first principle upon which to base all of human society would at the same time altogether abjure government– whose two primary duties, through the police and the military, are both intended (inter alia) to protect our respective and collective “stuff” from our less-than-angelic neighbors!?!

Anarcho-capitalists are not suggesting the absence of law, only the absence of government. So, long story short (with more found in the writings of David Friedman and others), you might simply privatize the state until there’s nothing left of it, with a residual law code based on property and a few qualifiers such as letting people be arrested and subjected to an arbitration firm if they refuse to subscribe/submit to any. Law can live on without a central, taxing authority as plausibly as widely agreed-upon weights and measures could endure as a convention without those being mandated by a central, taxing authority. Once you’re up and running, you have an incentive to participate in arbitration and police firms simply because _the other guy will likely have his_.

This leaves countless details to address, but then, “democracy” would sound hopelessly complicated if you’d only known monarchy and it were first suggested. We’ve had (and benefited from) privatization in each area of life including arbitration, and anarcho-capitalism is simply applying those lessons across the board instead of sporadically. Be suspicious of anyone who, faced with that complexity — or simply the complexity of an ordinary mixed economy — throws up his hands and says “It all sounds like it’s veering toward chaos to me! We need a central authority!”